chapter 3 wills capacity and contests
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Chapter 3 Wills: Capacity and Contests

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Chapter 3 Wills: Capacity and Contests. Any person of full age and sound mind may dispose of property by will. . . Iowa Code 622.264. Any person of full age and sound mind may dispose of property by will. . . Iowa Code 622.264.

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Presentation Transcript
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Any person of full age and sound mind may dispose of property by will. . .

Iowa Code 622.264

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Any person of fullage and sound mind may dispose of property by will. . .

Iowa Code 622.264

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Any person of fullage and sound mind may dispose of property by will. . .

Iowa Code 622.264

full age
Full Age
  • 18 years or older
  • Under 18 but emancipated as a resulted of marriage, even though marriage ended in divorce
      • Iowa Code 633.3(18)
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I, Emperor Dwayne, King of Nebraska,

being of sound and disposing mind

why mental capacity
Why Mental Capacity?
  • Want only to give effect to testator’s true desires
  • Testator’s without mental capacity are not persons
  • Mental capacity protects testator’s family
why mental capacity1
Why Mental Capacity?
  • Mental capacity assures rational dispositions which benefit society
  • Mental capacity protects the mentally infirm from exploitation
mental capacity
Mental Capacity
  • Nature and extent of one’s property
  • Persons who are the natural objects of one’s bounty
    • Have the highest moral claims
  • Disposition one is making of one’s property
  • How the first three elements relate to each other to form an orderly plan of disposition
  • Minimum competence
    • One can be judicially declared incompetent and still have testamentary capacity
mental capacity1
Mental Capacity
  • Presumption of capacity
  • Burden on contestant to prove incapacity by proving failure of any one of the four requirements
insane delusion

Insane Delusion

An insane delusion is “one to which the testator adheres against all evidence and reason to the contrary.

pre mortem probate
Pre-Mortem Probate
  • What is it?
  • What are its benefits?
  • What are its drawbacks?
undue influence1
Undue Influence
  • Testator susceptible to undue influence
  • Alleged influencer had opportunity to unduly influence the testator
  • Alleged influencer was disposed to influence testator to obtain improper favor
  • Will evidences a result that is the likely effect of undue influence
  • Contestant has the burden of proof
ethical issues
Ethical Issues
  • Should a lawyer:
  • Draft will in which benefit given to lawyer
  • Draft will naming lawyer as a fiduciary
  • If named as the fiduciary, also be the “attorney for estate”
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